‘It’s our way of living’

LIHUE — In an important win for Native Hawaiian rights, a higher court unanimously upheld a Fifth Circuit Court ruling that had dismissed charges against a man who had been arrested for hunting pigs on Gay & Robinson property.

The case had been sent to appeals by the state.

The higher court recently concluded that the circuit court had not erred in stating that Kui Palama had satisfied the Hanapi test, which is a three-part test to prove he is a descendent of Native Hawaiians who inhabited the islands prior to 1778.

To pass the test, Palama had “to qualify as Native Hawaiian” per guidelines set forward by Public Access Shoreline Hawaii v. Hawaii County Planning Commission or PASH. Palama also had to establish that pig hunting was “constitutionally protected as a customary or traditional Native Hawaiian practice.” Finally, Palama had to prove he hunted the pigs on “undeveloped or less than fully developed property.”

“I feel blessed to have this opportunity for not only myself but for other kanaka people,” Palama said. “We’re heading in the right direction.”

Palama said pig hunting has been in his family for years. He doesn’t think about it. When he walked out on that land nearly five years ago, it was just about providing sustenance for his three children and girlfriend. One pig can feed all his children for a month.

“Just bringing home some food for my family,” Palama said. “It’s not sport. For us it’s our way of living. Our lifestyle. We’ve been taught for years to go catch our food.”

After being arrested on the Gay & Robinson property in January 2011 for what Palama said was his right, the state charged him in March 2011 for simple trespass and prohibited hunting on private lands.

Palama filed a motion to dismiss charges one year later.

“Hawaii Courts have repeatedly stressed that Native Hawaiian traditional and customary practices on undeveloped lands are entitled to broad constitutional protection,” said Dan Hempey, the defense attorney who represented Palama in the appeal. “Mr. Palama firmly opposed what he saw as an attempt to narrow his rights with these criminal charges.”

To pass the Hanapi test, Palama brought in several witnesses to testify about his Native Hawaiian background and traditions including Dr. Jonathan Osorio — an expert in Native Hawaiian practices— who, with an objection by the state, testified pig hunting was an established Hawaiian custom.

Other witnesses testified to his genealogy.

Circuit Court Judge Kathleen Watanabe dismissed the case with prejudice.

Shaylene Iseri-Carvalho fired off an appeal that said the circuit court had erred in the Palama case for several reasons. The appeal was filed shortly before Iseri-Carvalho left office. Prosecutor Justin Kollar did not dismiss the appeal.

At that point, all the briefings had already been filed, Kollar said.

“It was better to just let the court make its ruling,” Kollar said. “There’s not a lot of court opinions on this type of thing. We wanted to know the outcome. The only way to do that is to have the courts answer it.”

Ultimately the prosecutor, the attorney general and the landowner all argued against Mr. Palama in the appeals court.

“Mr. Palama is obviously pleased that the appeals court affirmed judge Watanabe’s decision that the Hawaii Constitution provided him a defense to these criminal charges,” Hempey said.

Palama wants his “kanaka” family to know that if they have just one drop of Native Hawaiian blood, they should check their genealogy.

“If you’re in a rut, come to me,” he said.

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Michelle Iracheta, cops and courts reporter, can be reached at 245-0424 or miracheta@thegardenisland.com. Follow Michelle on Twitter @cephira